Sunday, January 10, 2010

Trial may make science argument

Ted Olson is suing for same-sex marriage in California, and wrote a Newsweek article on The Conservative Case for Gay Marriage. I did not see any conservative arguments in the article, but he does claim to make a scientific argument:

My answer to this seeming conundrum rests on a lifetime of exposure to persons of different backgrounds, histories, viewpoints, and intrinsic characteristics, ...

Science has taught us, even if history has not, that gays and lesbians do not choose to be homosexual any more than the rest of us choose to be heterosexual. To a very large extent, these characteristics are immutable, like being left-handed.

No, there is no gay gene or any such scientific proof.

His same-sex marriage trial will soon be broadcast on YouTube. Perhaps he will present the scientific evidence and explain its legal significance.

If there really is scientific evidence, then it should tell us what age sexual orientation is determined. It would not say "to a large extent", but give us numbers. And we have all sort of other laws and policies that favor some people based on characteristics that may be largely immutable, so I don't see why that would be unconstitutional.

So there are now three classes of Californians: heterosexual couples who can get married, divorced, and remarried, if they wish; same-sex couples who cannot get married but can live together in domestic partnerships; and same-sex couples who are now married but who, if they divorce, cannot remarry. This is an irrational system, it is discriminatory, and it cannot stand.

It was the Calif. supreme court that created that third category. Maybe Olson should have tried to get the US supreme court to overturn that, if he feels so strongly about it.

However bad that decision may have been, how are Olson's clients harmed by it? He does not explain in his article.